NEWPORT — Developers of a proposed senior housing project in North Newport are asking a Superior Court judge to remove a condition imposed by the Newport Planning Board requiring them to apply again for two variances as part of the site plan approval.

Avanru Developers of Walpole, N.H., and North Newport Land Holdings, of Croydon, allege in their complaint that the Planning Board was wrong to say the variances, approved by the Zoning Board of Adjustment in March 2022, had expired.

“The Planning Board took the unreasonable, illegal and unlawful position that the variances previously obtained from the ZBA had expired,” states the seven-page complaint filed in early April by the developers’ Manchester attorney James Harris.

The town, in its response, filed in May, denied the developers’ claim and asked the court to uphold the Planning Board's determination that the variances had expired and the corresponding condition of the site plan approval.

The Planning Board approved the site plan March 19 with the condition for the variances, which had originally been approved by the zoning board on March 17, 2022. Without an extension, the variances’ approval expires after two years.

The developers have proposed to construct a three-story ell-shaped building for 96-units of senior housing on about five acres at the north end of a vacant 17-acre parcel that sits between Route 10 and the runway of Parlin Field, the town-owned airport. The airport’s managers and several residents in homes on the opposite side of Route 10 have opposed the project, called Runway Heights Senior Housing.

Though Avanru disagreed with the Planning Board’s interpretation regarding the expiration of the two variances, it applied for them a second time. One variance would allow multi-family housing in the rural district and the second would allow the building to exceed the maximum height of 30 feet. On May 16, the zoning board denied the multi-family housing variance for failing to meet the "hardship" criteria and did not hear the other variance request.

The complaint against the town states that the Planning Board also erred in sending out notices to abutters, which is required, and the delay pushed back the site plan review from February to March.

According to court documents, the developers, who filed the site plan in January in time to be reviewed by the Planning Board in February, claim they followed the town’s instruction and omitted certain parties from the list of abutters.

“The town’s instruction was improper and resulted in having to delay consideration of the site plan application until the March 19 Planning Board meeting so a new notice could be sent to all abutters,” the complaint states.

The town’s attorney, Steven Whitley, of Manchester-based Drummond Woodsum and MacMahon, said in a five-page response, that while a “conversation” between the parties took place about which abutters to include for the Feb. 13 meeting date, it denies the allegation that the instructions to Avanru were “improper.”

“By way of further answer, it is the applicant’s responsibility to provide a list of abutters to receive notice,” Whitley wrote.

Avanru and NNLH also claim that state law says “no variance shall expire within 6 months after the resolution of a planning application filed in reliance upon the variance.”

“The Planning Board acted upon the Petitioners’ site plan application on March 19, 2024 so the variances could not have expired until Sept. 19, 2024,” court documents state.

In its answer dated May 23, the town said the previously issued “variances expired before the PB granted site plan approval.

“Avanru misconstrues the ‘6 month extension’ language (of the RSA) and it does not apply to save their variances from expiration as a matter of law,” Whitley wrote. “Moreover, Avanru was well aware of the impending expiration of the previously issued variances with ample time to request an extension yet made no request to the ZBA to do so before they expired.

“The actions by the (Planning Board) were reasonable and in accordance with the applicable law and this complaint should therefore be denied and the site plan condition imposed by the (Planning Board) affirmed.”

The next hearing in the case is scheduled for July 16 in Hillsborough Superior Court North in  Manchester.

 Patrick O’Grady can be reached  at pogclmt@gmail.com.